Stand Down, Chicken Little. The Sky Isn’t Falling, Schools Will Open

Chicken Little is now running around saying the sky is going to fall (in the form of schools not opening on time) unless the Governor signs Senate Bill 1, or some other education funding bill that includes an “Evidence Based” funding model. But is that really the case?

Senate Bill 6, the budget bill that was passed over the Governor’s veto several weeks ago contains the following language:

“The following amounts, or so much thereof as may be necessary, are appropriated to the Illinois State Board of Education for Evidence-Based Funding, provided for in Section 18-8.15 of the School Code.”

While it’s true that Senate Bill 1, if it became law, would add Section 18-8.15 to the Illinois School Code and that section would define “Evidence-Based Funding,” (as of this writing) Senate Bill 1 has not yet been sent to the Governor, so neither the term “Evidence-Based Funding” nor its model of funding is defined in statute. Section 18-8.15 of the Illinois School Code simply does not exist and may never exist. It is a nullity.

What that means is that funding under Senate Bill 6 using the “Evidence-Based Funding” model is contingent upon the happening of a future event (the passage of a bill containing a definition of “Evidence-Based Funding”). There was no language in Senate Bill 6 that made its passage contingent upon the passage of Senate Bill 1. In fact, such contingent language was contained in Senate Bill 1 as introduced, but was omitted by House Floor Amendment 2, which became the bill. The omission of such contingent language is an unambiguous expression of legislative intent that passage of Senate Bill 6 was not contingent upon passage of Senate Bill 1, or vice versa.

What is then left is the phrase.

Under Illinois law, undefined terms in the statute must be given their ordinary and popularly understood meaning. However, in this case, there is no ordinary and popularly understood definition of “Evidence-Based Funding” because any school funding formula, including the formula Senate Bill 1 is intended to replace, is based on evidence. Therefore, the term “Evidence-Based Model” is simply too broad to constrain the appropriation of money for education funding to that particular term.

While the sponsor of SB 1 did a very good job on the floor laying out an argument for the legislative intent behind the term and its application in SB 6, there’s a stronger public policy argument which runs against holding school funding hostage to an undefined term. The idea that an appropriation for education could be halted by language in a bill that may never pass runs afoul of Article X the Illinois Constitution and the clearly expressed legislative intent to fund Illinois’ public schools.

Contained within both SB 1 and SB 1124 is a provision that every school district in the State of Illinois be held harmless, meaning that each school district is to receive at least the same amount of money from the State as it did in the last fiscal year. For example, Senate Bill 1 provides:

“For the 2017-2018 school year, the Base Funding Minimum of an Organizational Unit…shall be the amount of State funds distributed to the Organizational Unit during the 2016-2017 school year prior to any adjustments and specified appropriation amounts…”

Whether a court would look at Senate Bill 1124 (Republican version) or Senate Bill 1 (Democrat version), an identical and consistent feature is this hold-harmless provision.

You may point out that I’m trying to have it both ways, that I’m arguing that neither SB 1 nor SB 1124 is yet law but still I’m trying to cleave unto a provision contained in those bills that provides for a minimum level of funding that can only be calculated by making reference to provisions contained within those bills.

I won’t argue with you. However, given the strong Constitutional and public policy imperative noted above, the legislature cannot shirk its duty and must provide an appropriation of no less than the amount sent to each school district as was sent in the prior year, adjusted, if necessary, using the formula under which that amount was determined in the prior year.

This is the only logical manner in which the “hold-harmless” can be squared with the law as it currently exists. Any additional funds appropriated for education could then be held until an “Evidence-Based Funding” bill becomes law. This is the only means by which legislative intent would be honored by providing that each school district receive no less than the amount it received in the 2016-17 school year (the “hold harmless”) and receive that portion of the additional appropriation according to whichever “Evidence-Based Funding” bill becomes law.

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